Sunday, February 22, 2009

It did not take long for realpolitik to swallow the optimism of President Obama. Faced with a suit by prisoners held indefinitely by the United States at Bagram Air Force base in Afghanistan, the administration has thumbed its nose.

The prisoners are being held indefinitely by the United States. The Government contends the detainees are enemy combatants. The prisoners say they are not. They want their day in court to challenge the designation. So they filed a habeas corpus proceeding in Washington, D.C. to challenge the detention. The District Court judge considering the claim, John D. Bates, asked for the administration's position. What he got was a terse two-sentence filing asserting that because the prisoners are noncitizens held outside the of the United States, the court has no jurisdiction to hear the claim.

This crabbed conception of justice is a disgrace and the means exist to challenge it. International law is a part of the laws of the United States and federal courts are bound both to ascertain what it is and to administer it. As the Supreme Court noted in The Paquete Habana, 175 U.S. 677, 700 (1900): "International law is part of our law, and must be ascertained and administered by the courts..." Federal courts have previously recognized the right to be free arbitrary imprisonment. Fernandez v. Wilkinson, 505 F. Supp. 787 (D.Kansas 1980).

Customary international law is clear, as expressed in both the European Convention for the Protection of Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights: indeterminate detention of a human being, whether citizen or not, absent some determination of risk to security violates human rights. The prisoners at Bagram seek to challenge their designation as enemy combatants. A decent respect for the law of nations requires that they be given the opportunity to raise such a tribunal in an American court. They are being held against their will by American troops at a facility operated and controlled by American forces.

Barack Obama ran on a platform promising hope, transparency and a something other than the politics of fear and hatred. Hiding behind an anachronistic conception of sovereignty in a glib two sentence "brief" is a deep disappointment. I hope the Bagram prisoners raise a claim under international law in the federal courts. Regardless of whether the detainees have rights as American citizens, they have rights as human beings that we are callous and foolhardy to ignore.